Kerri Oldham v Heartlands Support Services
[2023] FWC 3079
•27 NOVEMBER 2023
| [2023] FWC 3079 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kerri Oldham
v
Heartlands Support Services
(U2023/9721)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 27 NOVEMBER 2023 |
Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.
On 4 October 2023, Kerri Oldham (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).
The Applicant advised in their Form F2 – Unfair Dismissal Application (Form F2) that they commenced employment with Heartlands Support Services (Respondent) during the end of May 2023 and that their dismissal took effect on 4 October 2023.
On 11 October 2023, the Commission attempted to contact the Applicant on their nominated telephone number. A voicemail was left advising the Applicant that they had not served the minimum employment period and requesting that the Applicant contact the Commission. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising them that, on the basis of the information provided in the Form F2, they had not served the minimum employment period. The correspondence directed the Applicant to file any documents or other evidence to support their claim that they had served the required minimum employment period. That correspondence also warned that if they did not contact the Commission within 14 days their application may be dismissed without further notice.
On 31 October 2023, as the required documentation was not received, the Commission attempted to contact the Applicant on their nominated telephone number. However, the Applicant could not be reached. A voicemail message was left requesting that they contact the Commission urgently. A final follow up call was made to the Applicant on 16 November 2023. However, the Applicant could not be reached. A voicemail message was left requesting that they contact the Commission with the required documentation, by 17 November 2023, otherwise their application may be dismissed. To date the Applicant has not replied to the Commission’s correspondence.
Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment. Section 383 of the FW Act sets out the minimum employment period as follows:
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
Section 587(1) of the FW Act provides as follows:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospect of success.
As the material before the Commission indicates the Applicant has not completed the required minimum employment period under the FW Act, I am satisfied the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] PR768577.
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